Hester v. State, 41824

• Decision Date: 06 March 1961
• Docket Number: No. 41824,41824
• Citation: 127 So.2d 430,240 Miss. 369
• Parties: J. B. HESTER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 430

127 So.2d 430

240 Miss. 369

J. B. HESTER v. STATE of Mississippi.

No. 41824.

Supreme Court of Mississippi.

March 6, 1961.

D. H. Glass, Kosciusko, for appellant.

Joe T. Patterson, Atty. Gen., by J. R. Griffin, Asst. Atty. Gen., for appellee.

McELROY, Justice.

Appellant, J. B. Hester, was indicted at the September 1960 term of the Circuit Court of Attala County and charged with pointing and aiming a gun toward Ernest Lepard and discharging the same, maiming, wounding and injuring the said Ernest Lepard. The case was tried at that term and appellant was found guilty and sentenced by the court to serve a term of one year in the state penitentiary. The appellant was not represented by counsel and made no motion for a new trial. After the trial he employed counsel and brings this appeal.

The appellant contends the verdict of the jury is contrary to the evidence and contrary to the law and that the sentence is not in accord with the law or the evidence. The testimony by Ernest Lepard, the prosecuting witness, is to the effect that he was picked up by the appellant and that the appellant and others were in the car. There were about five people in all in the car.

Apparently another factor is involved in that all of the parties had imbibed to some extent in moonshine whiskey, yet it was shown that one passenger, a brother of the prosecuting witness, was inebriated to such an extent that he had passed out on the back seat. The appellant himself admitted that he had drunk some moonshine whiskey but wasn't drunk. The prosecuting witness, in his testimony, said that they proceeded to a point on a rural road in Attala County known as the old Goodman road, that they stopped the car at this point so that he could answer a call of nature, that he was standing in front of the automobile and while he was so standing there the appellant shot at him--the shot entering the ground right near his feet. The appellant told him to hold out his cigarette in his hand and upon complying with this request, the appellant shot the cigarette three or four times, whereupon he turned to run and was shot in the hip by the appellant. Upon being shot, Lepard made a hasty retreat to the rear of the automobile. The appellant, being crippled from the waist down, never left his seat in the automobile. About this time the sheriff and his deputies arrived on the scene and the altercation was brought to a halt.

The appellant took the stand in his own behalf and testified as follows: 'He just come on me with a screwdriver and I shot one time to scare him and he dropped his screwdriver and he bent down to get it again and when he did I shot him, I knowed that would scare him, if it didn't I would have to shoot him to really stop him, and when I shot him he run around back of the car and as he did the law started up and he never did pick up his screwdriver, he run off and left it. Billy Horn picked that up. He had already run that Edwards boy off, got after him with it, and I asked him to behave and he started on me with it, and I told him I'd shoot him if he come on me with it and he started and I shot in the ground and he started to jump back and dropped his screwdriver and went over to get it and when he did I shot him in the hip. That's all I've got to say.'

In support of the contention that the evidence is sufficient in this case to make a question for the jury in Armstrong v. State, Miss. 48 So.2d 476, it is said as follows: 'This appeal is from a judgment of conviction for assault and battery by pointing and aiming a pistol and by its discharge injuring another. The indictment was drawn under Section 2013, Code 1942.

'The only assignments are the refusal of a peremptory charge, and the insufficiency of the testimony to support the conviction.

'The prosecuting witness was engaged in a scuffle with appellant, during which the latter drew a pistol. During...